tion of superior diligence only arises between creditors contending for priority of lien, and has no application here. The publicity with which a debtor's estate is surrounded by a trust which defies all the assaults of the ordinary process of law cannot be relied on as a protection against the equitable remedy of a creditor's bill.

"The decree of the superior court is reversed, and the cause remanded, with directions to enter a decree in conformity with this opinion."

If the defendants Claude B. and Anna King, or Anna King as administratrix, desired to raise the question as to the receiver being a necessary party to the bill, they should have done so by demurrer: Wait on Fraudulent Conveyances and Creditors' Bills, sec. 133, and cases cited.

The judgment of the appellate court is affirmed.

CREDITOR'S BILL - Parties to the bill, property subject to the bill, and the effect of the bill as a lien: See extended note to Massey v. Gorton, 90 Am. Dec. 288-300.

CREDITOR'S BILL-PARTIES. —The real representatives of a decedent are necessary parties to a creditor's bill, against the personal representative, seeking to subject decedent's realty to the satisfaction of debts proved: Perkins v. Berry, 103 N. C. 131.

TO MAINTAIN A CREDITOR'S BILL, a creditor must, ordinarily, show that he has exhausted his remedy at law, or that no adequate remedy at law exists: Humphreys v. Atlantic etc. Co., 98 Mo. 542; Vanderpool v. Notley, 71 Mich. 422; Durand v. Gray, 129 Ill. 10; Ahlhauser v. Doud, 74 Wis. 400; Schuster v. Rader, 13 Col. 329.

ANTHONY V. WHEELER.

[130 ILLINOIS, 128.]

PRACTICE - Directing VerdICT. The jury may be instructed to find for defendant when plaintiff has wholly failed to prove some material part of his case, and the same rule applies to plaintiff under similar circumstances on the part of defendant. Such an instruction can only be questioned when there was competent evidence tending to support a different verdict from the one directed by the court.

DEEDS - NECESSITY FOR RECORDING - WHEN TAKE EFFECT. - All deeds or other instruments relating to or affecting the title to real property take effect only from and after recording, as to all subsequent purchasers without notice, under the Illinois statute.

UNRECORDED DEEDS-CONSTRUCTIVE NOTICE TO SUBSEQUENT PURCHASERS.

Actual notice is not essential to give effect to a prior unrecorded conveyance. Any fact or circumstance coming to the knowledge of the subsequent purchaser which would put a prudent man on inquiry, and which, if pursued, would lead to actual notice of a prior unrecorded deed

lying in the apparent chain of his title, is sufficient to invalidate the subsequent purchase; and, in such case, notice is imputed to the subsequent purchaser on account of his negligence in not prosecuting his inquiries in the direction indicated. Enough must be shown to impute bad faith to him in order to taint his purchase with fraud in law, and mere want of caution as distinguished from fraudulent and willful blindness is not sufficient to charge him with constructive notice of the unrecorded deed. UNRECORDED ADMINISTRATOR'S DEED, WHEN NOT NOTICE TO Subsequent PURCHASER. - An unrecorded administrator's deed, in the absence of actual notice thereof, or of the proceeding under which it was obtained, is not such constructive notice as will invalidate the title of a subsequent bona fide purchaser.

UNRECORDED ADMINISTRATOR'S DEED - DECREE AUTHORIZING, NOT NOTICE TO SUBSEQUENT PURCHASER. A decree in a proceeding to sell land to

pay debts in the county court, in the county where the lands are situated, is not constructive notice to a subsequent purchaser of the execution of an administrator's deed.

SUBSEQUENT PURCHASER IS PRESUMED to be a purchaser for value, and the burden of proof is on the party attacking the conveyance to show bad faith or want of consideration.

Sawin and Vanderplæg, and F. P. Simons, for the appellants.

William J. Ammen, and George F. Harding, for the appellee.

WILKIN, J. This is an action of ejectment, to recover parts of a city lot in Chicago. At the time suit was brought, appellants were in possession, claiming title under certain tax deeds and by virtue of a quitclaim deed from one Carrie Walker, and Samuel O. Walker, her husband, to appellant Caroline M. Robertson, dated June 9, 1885, and recorded on the 13th of the same month. Appellee, claiming to hold the paramount title, brought this suit to the June term, 1886, of the superior court of Cook County.

On the trial, testimony was introduced by both parties, which, on some of the questions involved, was conflicting. After the evidence was closed, the judge, against the objection of the defendants, instructed the jury to find for the plaintiff, and on verdict being returned, and motions for new trial and in arrest of judgment overruled, judgment was entered for the plaintiff for the premises claimed, and for costs. Defendants prayed this appeal.

Numerous errors are assigned on the record. The fourth presents the principal question in the case, viz.: "The court erred in instructing the jury to find a verdict for the plaintiff."

Although the practice of thus taking a case from the jury has been often questioned in this court, it is now so firmly

established as to no longer require the citation of authorities in its support. The question has generally arisen on instructions to find for the defendant in cases where it was thought the plaintiff had wholly failed to make proof of some material part of his case; but the practice extends to and allows a similar instruction on behalf of the plaintiff, as expressly decided in the late case of Heinsen v. Lamb, 117 Ill. 549, — a case similar to this. The important question in every case in which such an instruction is given is, Was there competent evidence tending to support a different verdict from the one directed by the court?-the theory upon which the practice is approved being, that whether or not there is such evidence is a question of law, to be determined by the court.

It it said by counsel for appellee that the ground upon which the instruction was given in this case was, that the plaintiff had shown, by undisputed proof, a fee-simple title from the admitted common source, and that the defendants were chargeable with constructive notice of the unrecorded deed under which he claims, and that all other evidence admitted upon either side was, in that view, incompetent or immaterial, and we are convinced that upon no other theory of the case can even a plausible argument be adduced in its support. By reference to the bill of exceptions, we find that Martin O. Walker, the common source of title, died May 24, 1874, seised in fee of the property in question. He left two sons, Samuel O. and Edward S., his only heirs. Plaintiff below, to establish his title, offered in evidence quitclaim deeds from these heirs to one Charles Fargo, dated September 20, 1875, and recorded two days thereafter, that from Edward S. being in consideration of nine hundred dollars, and the other of one dollar and other valuable consideration; also a quitclaim deed, in consideration of one dollar, from said Fargo to Carrie Walker, who was the wife of Samuel O. Walker, dated March 23, 1877, recorded November 2, 1878; also a quitclaim deed, in consideration of one dollar, from said Carrie Walker, and Samuel O. Walker, her husband, to George F. Harding, dated July 20, 1887; also a warranty deed from said Harding and wife, to appellee, in consideration of five hundred dollars, dated May 7, 1883. Neither of these last two deeds was recorded until July 1, 1885. He also offered in evidence the record of a proceeding in the county court of Cook County, showing that in March, 1876, Augustus L. Chetlain, administrator of Martin O. Walker,

deceased, filed his petition, praying an order of said court to sell this and other real estate belonging to said deceased to pay debts; also a deed of August 30, 1878, and report of said administrator, showing a sale of the property in question to one George R. Grant on the fifteenth day of October, 1878, for one hundred dollars, which report was approved October 19, 1878. He also introduced in evidence an administrator's deed from said Chetlain, administrator, to said Grant, dated October 15, 1878, and recorded July 1, 1885, and a quitclaim deed from said Grant to George F. Harding, dated February 25, 1883, in consideration of one dollar, recorded July 1, 1885. Defendants below introduced the above-mentioned deed from Carrie Walker and her husband to Caroline M. Robertson, and also two tax deeds,-one dated March 23, 1877, recorded the 26th of that month, and another dated March 31, 1881, recorded April 5, 1881, and from these, through mesne conveyances, the said Caroline M. Robertson, on December 17, 1884, received a deed from appellants Jennie B. Bryan and husband, which was recorded December 19, 1884. In our view of the case, it is not necessary to inquire into the validity of appellants' title through these tax deeds.

It will be seen, from the foregoing statement, that when Caroline M. Robertson received her deed from Carrie Walker, June 9, 1885, and placed it on record June 13, 1885, there was no deed of record by which her title could be questioned. All the deeds through which appellee claims, both under the administrator's sale and the deed from this same Carrie Walker, remained unrecorded until July 1, 1885. We shall also, for the purposes of this opinion, treat the proceeding of the administrator in the county court to sell land to pay debts as in all respects valid. Therefore from that source appellee established by undisputed proof a claim of title. which would have vested the fee in him, as against appellants, had his deeds been recorded before the deed from Carrie Walker to Caroline M. Robertson. The question then is, Are the facts proved so conclusive of notice to appellants of the unrecorded deeds of appellee as to justify the court in withdrawing that question from the jury?

It is not claimed that there was actual notice of any of these unrecorded deeds. Our statute requires all deeds or other instruments relating to or affecting the title to real estate to be recorded, and expressly provides that they shall take effect only from and after such recording as to all sub

sequent purchasers without notice. When we say that notice of a prior deed shall have the same effect as recording, we but repeat the language of the statute. The question, however, still remains, Who is a "subsequent purchaser without notice," within the meaning of the law?

It is well settled that actual notice is not essential to give effect to a prior unrecorded conveyance. The difficulty in such cases usually arises from the necessity of determining what shall be held sufficient constructive notice, and that is what we are called upon to do here. It is stated by the authorities generally that any fact or circumstance coming to the knowledge of the subsequent purchaser which would put a prudent man on inquiry, and which, pursued, would lead to actual notice of an unrecorded deed lying in the apparent chain of his title, is sufficient to invalidate the subsequent purchase. In such case, notice is imputed to the subsequent purchaser, on account of his negligence in not prosecuting his inquiries in the direction indicated: Wade on Notice, sec. 246. Enough must be shown to impute to the subsequent purchaser bad faith, so as to taint his purchase with fraud in law: Doyle v. Teas, 4 Scam. 202. Mere want of caution as distinguished from fraudulent and willful blindness is not sufficient to charge a subsequent purchaser with constructive notice of an unrecorded deed: Grundies v. Reid, 107 Ill. 304.

Here the appellee insists that appellants had constructive notice of the unrecorded administrator's deed within the rule above stated. The position sought to be maintained is, that the proceedings in the county court were sufficient to put her on inquiry, which, properly pursued, would have led to knowledge of the administrator's deed. There is no proof whatever that she had actual knowledge of that proceeding. An attempt was made to show that such knowledge was brought home to her husband, who seems to be the real party in interest, through an abstract of the title; but this he denies, and we think the weight of the evidence is, that he had no such actual notice, at least it cannot be claimed that there is not a fair conflict of evidence on that point, even as to him. In fact, the argument of counsel for appellee is not based on the theory of actual notice of that proceeding, but they maintain that, inasmuch as the proceeding was had in the county court of the county in which the land is located, appellants were bound to know what had been done in that court, and from that knowledge pursue the inquiry as to whether or not a deed